There is a pattern developing in the Court of Appeals' Blakely opinions, I think. It is, quite simply, the court repeatedly fails to provide any explanation for the positions it takes. There may be good reasons, for example, not to apply Blakely to discretionary consecutive sentences. The Court of Appeals is certainly not the first court not to "extend" Blakely to consecutive sentences. In particular, New Jersey and California have both rejected the application of Blakely to consecutive sentences. State v. Abdullah, 2004 N.J. Super. LEXIS 355 (N.J. Super. Ct. App. Div. October 12, 2004); People v. Sykes, 16 Cal. Rptr. 3d 317 (Cal. Ct. App. July 28, 2004). Here is the passage from Abdullah regarding Blakely and consecutive sentences:
Finally, we address defendant's contention that the factors used to support imposition of parole ineligibility and consecutive terms should be determined by a jury. Both Blakely and Apprendi involved a single offense. Neither dealt with, nor are they applicable to, the determination of consecutive sentences. See People v. Sykes, 120 Cal. App. 4th 1331 (2004) (noting that the historical and jurisprudential basis for the Blakely and Apprendi holdings did not involve consecutive sentencing). Although the imposition of consecutive terms and a five-year term of parole ineligibility, N.J.S.A. 2C:43-6b, increase defendant's punishment, they do not increase the penalty above what the law provides for the offense charged. See Harris v. United States, 536 U.S. 545, 562, 122 S. Ct. 2406, 2416-17, 153 L. Ed.2d 524, 541 (2002) (plurality opinion). We are satisfied that the sentence imposed does not suffer from the constitutional infirmities proscribed by Blakely.
It is, perhaps, not much more of an explanation simply to say that we're doing what California and New Jersey are doing. Indeed, New Jersey essentially says, "We're following California (Sykes)" and a mere merry-go-round of "authority" may not be worth much more than a decision (apparently) by fiat such as Cowens. The Sykes opinion, however, has a great deal more to it than Abdullah even lets on, and it requires some thought:
Neither Blakely nor Apprendi purport to create a jury trial right to the determination as to whether to impose consecutive sentences. Both Blakely and Apprendi involve a conviction for a single count. The historical and jurisprudential basis for the Blakely and Apprendi holdings did not involve consecutive sentencing. (Blakely v. Washington, supra, 542 U.S. at p. __ [124 S. Ct. at pp. 2534-2536]; Apprendi v. New Jersey, supra, 530 U.S. at pp. 476-483, 489-490, fn. 15.) Further, in Apprendi, Associate Justice John Paul Stevens explained the jury trial right at issue: "We do not suggest that trial practices cannot change in the course of centuries and still remain true to the principles that emerged from the Framers' fears 'that the jury right could be lost not only by gross denial, but by erosion.' Jones [v. United States (1999)], 526 U.S. [227,] 247-248 [143 L. Ed. 2d 311, 119 S. Ct. 1215]. But practice must at least adhere to the basic principles undergirding the requirements of trying to a jury all facts necessary to constitute a statutory offense, and proving those facts beyond reasonable doubt." [***29] (Apprendi v. New Jersey, supra, 530 U.S. at pp. 483-484, fn. omitted, italics added.) (6) The consecutive sentencing decision does not involve the facts, in Justice Stevens' words, "necessary to constitute a statutory offense." (Id. at p. 483.) In fact, the consecutive sentencing decision can only be made once the accused has been found beyond a reasonable doubt to have committed two or more offenses--this fully complies with the Sixth Amendment jury trial and Fourteenth Amendment due process clause rights. Those facts which affect the appropriate sentence within the range of potential terms of incarceration for each offense are subject to Blakely and Apprendi; this constitutional principle does not extend to whether the sentences for charges which have been found to be true beyond a reasonable doubt shall be served consecutively. In this respect, we are in full accord with the numerous courts that have held that Apprendi does not apply to the decision to impose consecutive sentences.
(Some citations omitted).
On the other side and closer to home, the Seventh Circuit in United States v. Messino, 382 F.3d 704 (7th Cir. August 31, 2003), reversed consecutive sentences in a somewhat unusual circumstance. Limited by Apprendi, the district court could not get to the guideline range without imposing consecutive sentences. Without much discussion, as if it's conclusion were obvious, the Seventh Circuit said, "No": "Because we find that the court erred in sentencing Clem based on its own factual findings, we vacate the conspiracy sentence and the consecutive sentence imposed as a result of those findings."
Additionally, Ohio has squarely held that Blakely does apply to consecutive sentences in State v. Moore, 2004 Ohio App. LEXIS 4915 (Ohio Ct. App. October 7, 2004):
In this case, the court could impose consecutive sentences only by making judicial findings beyond those either determined by a jury or stipulated to by the defendant. Defendant did not stipulate to the findings or otherwise waive his constitutional right to have these facts determined by a jury. Therefore, defendant's first and second assignments of error are sustained and his sentence is vacated and remanded for consideration of the application of Blakely to defendant's sentence.
There was a similar failure in Carson and Bledsoe to offer any explanation why "criminal history" can be equated with the Almendarez-Torres exception for "the fact of a prior conviction." Again, there may be reasons for making the equation. Judge Posner in Booker appears to make it, although without elaboration and in pure dicta.
But there are also substantial reasons not to make it. The Supreme Court in Apprendi itself described the "prior conviction" exception as "at best an exceptional departure" from Apprendi's own rule. Apprendi, 530 U.S. at 487-88 ("[O]ur conclusion in Almendarez-Torres turned heavily upon the fact that the additional sentence to which the defendant was subject was "the prior commission of a serious crime.").
I am not suggesting that the Indiana appellate courts ought to be writing law review articles. The Court of Appeals, especially, has a very heavy case load, and it is in the business of deciding cases--lots of cases. The problem is that is quite easy to see why the opinions in Cowens, Carson, and Bledsoe are simply wrong and much, much more difficult to see why they might even be plausible. In Cowens, for example, there is simply no discussion of why Blakely would not apply to discretionary consecutive sentences, even though controlling precedent of the Indiana Supreme Court requires the judicial finding of an aggravating circumstance to support such sentences. That requirement would seem to put the Blakely bullseye on the back of consecutive sentencing in Indiana. If not, why not? And why won't the Court of Appeals tell us? (Could it be because of O'Connell v. State, 742 N.E.2d 943, 952 (Ind. 2001), in which the Supreme Court said, "It is a well established principle that the fact of multiple crimes or victims constitutes a valid aggravating circumstance that a trial court may consider in imposing consecutive or enhanced sentences"?)
More stuff to come. Lots more stuff.